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Mundine v Brown (No 6)

Mundine v Brown (No 6)

Case [2010] NSWSC 1285 5 November 2010

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CITATION: Mundine v Brown (No 6) [2010] NSWSC 1285

HEARING DATE(S): 10 May - 1 June 2010, 6 August 2010

JUDGMENT DATE :
5 November 2010

JUDGMENT OF: Harrison J

DECISION: 1. Verdict for the plaintiff for $60,000.
2. I will hear the parties on the question of costs.
3. Direct that the exhibits be returned after 28 days.

CATCHWORDS: DEFAMATION – defence of common law qualified privilege – where matter complained of published in newspaper circulating in Clarence Valley – where plaintiff not named in article – whether publication to entire readership of paper or only those persons who identified the plaintiff from extrinsic facts – held publication to all recipients – defence of qualified privilege rejected – DAMAGES – hurt to feelings and loss of reputation – plaintiff employed as Aboriginal mental health worker – defamatory imputation that she was incompetent as such – where plaintiff the only Aboriginal mental health worker in Clarence Valley – defamation substantial – plaintiff awarded $60,000 – no aggravated damages

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Aktas v Westpac Banking Corporation Limited [2010] HCA 25
Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
Bashford v Information Australia Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bennette v Cohen [2009] NSWCA 60
Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176
Goyan v Motyka [2008] NSWCA 28
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Megna v Marshall [2010] NSWSC 686
Moit v Bristow [2005] NSWCA 322
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Mundine v Brown [2010] NSWSC 468
Mundine v Brown (No 2) [2010] NSWSC 514
Mundine v Brown (No 3) [2010] NSWSC 515
Mundine v Brown (No 4) [2010] NSWSC 516
Mundine v Brown (No 5) [2010] NSWSC 517
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279
State of New South Wales v Riley [2003] NSWCA 208; (2002-2003) 57 NSWLR 496
Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

PARTIES: Lana Mundine (Plaintiff)
Avery Brown (First Defendant)
APN News and Media Limited (Second Defendant)
Daily Examiner Pty Ltd (Third Defendant)

FILE NUMBER(S): SC 2009/296431

COUNSEL: T Molomby SC with R K M Rasmussen (Plaintiff)
P M Sibtain (First Defendant)
A T S Dawson (Second and Third Defendants)

SOLICITORS: Slater & Gordon (Plaintiff)
Holding Redlich (First Defendant)
Banki Haddock Fiora (Second and Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mundine v Brown (No 6)

Details

AGLC: Mundine v Brown (No 6) [2010] NSWSC 1285
Case: [2010] NSWSC 1285
Decision Date: 5 November 2010

CaseChat Overview and Summary

The parties involved in Mundine v Brown (No 6) were Mundine, the plaintiff, and Brown, the defendant. The dispute pertained to an article published in a newspaper that circulated in the Clarence Valley, which contained defamatory statements about Mundine's professional competence. Mundine, an Aboriginal mental health worker, was not named in the article, but she was the only such worker in the area, leading to her identification by the readers. The case was heard in the Federal Court of Australia.

The primary legal issue the court had to decide was whether the publication was made to the entire readership of the newspaper or only to those who could identify Mundine from extrinsic facts. The court also needed to determine if the defence of common law qualified privilege applied. Additionally, the court had to assess the extent of the damage caused by the defamation, including hurt to feelings and loss of reputation, and determine if aggravated damages were warranted.

The court found that the publication was made to all recipients of the newspaper, not just those who could identify Mundine from extrinsic facts. Therefore, the defence of common law qualified privilege was not applicable. The court concluded that the defamatory imputation about Mundine's incompetence as a mental health worker was substantial, given her unique position in the community. Consequently, Mundine was awarded $60,000 in damages for hurt to feelings and loss of reputation. The court did not award aggravated damages.

Orders